cut my hours and take on new staff

sue_mac_2

having just had one weeks holiday from work the first in the three and a half years in this employment my boss informs me that because she found it too stressful to cover my job herself ( I am a cook and the service was very stressful for her) she would now be looking for another cook. No problem with this if the new cook covered my day off and holiday or relief work. She then informs me that my hours will be cut to three days a week ( now do five and have done five days or more for over a year and a half) I told her this was not right. I have helped her build her business for three and a half years and I should not be penalised because it is too busy for her to cope with cooking. I dont have any problems with the service. Does anyone know my rights in this matter. This is a small sole owner business and she thinks she can just do what suits her.

wombles_forever

Hi, what does your your contract say about hours worked and what does it say about holiday entitlement. Are you actually employed by your boss as a paid and registered employee with HMRC (ie. do you have a proper contract and do you pay tax and NI on PAYE) or are you classed as self employed and therefore you are registered as such and complete a self assessment for tax and NI?

This would make a difference to what rights you may have.

sue_mac_2

I was originally taken on as temporary cover for 30 hours a week verbally agreed to cover for a bereavement After six months I was taken on a three day a week working with another cook splitting the week between us. Eighteen months ago when she walked out I agreed to cover all the shifts and for six months did 6 and sometimes seven days a week. My boss then said she wanted to keep her hand in and I have done five days a week for just over a year, I have paid tax and national insurance from the start but have never received a contract in writing.

sue_mac_2

I forgot to say I am entitled to 28 days holiday but as we shut for three weeks at Christmas most of it is paid then however last year because of the way Christmas fell I only had two weeks paid and lost 14 days of holiday and only found out after the March31st deadline. I complained but the boss just said it was hard luck despite paying me cash minus tax and insurance last year. I am on PAYE.

Evilm

It sounds like she didn't accept you working 5 shifts as being a permanent arrangement and therefore counts your contract as being the original 3 days stated a while ago.

I'm not sure how long that can happen for before the new shift pattern and hours become "contracted" hours and counts as a permanent variation to your original contract. I suspect someone will be able to comment on that for you.

However I don't necessarily thing you have much right to fight this unless it does count as a permanent variation.

sue_mac_2

no when the other cook walked out we discussed the need for another cook but i said i would cover the shifts and have done so and she was happy with that and i have done so for 18 months.

closed

Look for another job.

SarEl

I'm afraid that I would broadly agree. You should have had a written statement of your main particulars of employment, but having one would possibly not help a lot because there have been so many variations in this contract that whilst "custom and practice" may apply, it could equally be argued that you were employed for a set number of basic hours and everything else has been overtime. It isn't a case of "how long" before something becomes permanant as an arrangement - sometimes it never does and this may only be able to be tested by a tribunal, and therefore, very possibly, some time after you have lost your job one way or another. So it depends on how far you want to push this and what her response is to you doing so - if she is clever enough about it she hcan do this quite lawfully, whatever, and your best case scenario may only be redundancy (and therefore still out of a job). So the question is - how far do you want to push this?

SarEl

PS - Sorry I got distracted and forgot the holiday issue. The employer is correct. You are entitled to holidays but it is your responsibility to take them. If you fail to take them or ask for them before the end of the leave year then that is your problem. Sorry.

sue_mac_2

no when the other cook walked out we discussed the need for another cook but i said i would cover the shifts and have done so and she was happy with that and i have done so for 18 months.

SarEl

sue_mac wrote: »

no when the other cook walked out we discussed the need for another cook but i said i would cover the shifts and have done so and she was happy with that and i have done so for 18 months.

I'm sorry but you are not understanding this, and I can see why - basically a lot of people don't understand how the law works and it can be confusing. The fact that you said your would cover the shifts does not, in law, entitle you to the shifts - even after 18 years! This could still be classed as overtime, and no matter how long you do overtime for it gives you no right to the hours. Some employers (supermarkets are notorious for this) practice exactly this all the time. You employ someone on 8 hours, or 16 hours, or whatever, and everything over those contractual hours is overtime. So someone could work for five years 40 hours a week - and all they were ever entitled to work was the 8 hours or whatever - and the employer can return them to those contractual hours in a flash, just like that.

But here is the rub - even if the law says that those five days are your contractual hours (and that in itself is a risky proposition) before you can do anything at all about it (i.e. go to tribunal) you must object to the reduction in hours. You must submit a formal grievance and if necessary an appeal. So what might the employer do then? Well if she is clever or gets good advice, she could do a number of things. The first is what I have already said - stick to a "you work 30 hours contractually and the rest was overtime" line - which may well work at a tribunal. The second is to say "OK, I accept that you wrok five days, but I have realised that this isn't working out for me as a business and I can't recruit the staff I need for two days so I am making you redundant - you can have your redundancy pay or you can accept this new contract that I am offering, up to you".

These would be options for any employer, but the fact that she is a small employer is actually in her favour. Tribunals are more lenient on small employers (and the law permits this) because they don't have the resources to get every detail right, and because in the end forcing an employer to employ somebody on XX terms when this threatens the business is simply not something a tribunal is going to do. And unless you are very thick-skinned you cannot take an employer to a tribunal and also work for them. So one way or another - you resign, she makes you redundant, or whatever - you could end up without the job and, depending on what she does, with a risky claim. Which is why I said that you need to be very sure that you want to take those risks. That isn't me advising you not to - it is making sure that you make an informed decision based on the reality.